Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Monday, December 10, 2012

Record interrogations: Reduce false confessions

CBS News' 60 Minutes last night had a disturbing story on the subject of false confessions, honing in on police interrogation of juveniles in Chicago, which the story called the nation's false confession capital. In a bizarre twist, a Chicago prosecutor insisted she believed in the guilt of exonerated defendants even after DNA had cleared them and implicated a convicted rapist. She suggested the rapist who's DNA was discovered (who is now deceased) coincidentally wandered by an open field after the fact and had sex with the corpse of a 14 year old, AFTER the boys who'd confessed had committed the deed. The courts disagreed, though, based on a close analysis of the recorded confessions, and released them with an accompanying finding of actual innocence.

The story reminded me Grits failed to link to a recent story from the Texas Tribune about proposed legislation by state Sen. Rodney Ellis to require police to record
custodial interrogations, which was one of the recommendations of the
Timothy Cole Advisory Panel on Wrongful Convictions that the Texas Lege failed
to act on last session. Critics of the bill rely on several highly questionable claims, but once you get past red herrings about cost and logistics, it comes down to these two: Criminals might "get off" if unrecorded confessions are suppressed and jurors would not understand often-aggressive interrogation techniques that may lead to an eventual confession.

As for the former, it's a phony argument. The bill explicitly allows un-recorded confessions to be admitted if police can show "good cause" why they weren't recorded, the definition of which includes all of the hypotheticals being tossed out by critics, and more. In any event, a disputed confession may later be retracted whether it's recorded or not. A recording, though, may help convince a jury the defendant is guilty anyway, or provide evidence that would otherwise not exist if the confession turns out to be false. The bill only requires interrogations to be recorded regarding serious
crimes: murder, kidnapping, human trafficking, sexual assault and child
abuse.

In some ways, the second reason - fear of public perception about police interrogation techniques - is based more in reality than the fear that confessed criminals will be releaesd, though Grits still doesn't consider it a particularly strong argument. American police tend to employ tactics derived from the Reid technique, which assumes guilt and relies on an accusatory style, cutting off denials and using psychological manipulation to secure confessions. European police, by contrast, tend to rely on an information gathering interview method, with the goal of interrogations more geared toward gathering data which can be confirmed or denied through investigation, as opposed to ending the investigation in the interrogation room. The Reid formula can appear coercive to an outside observer, and indeed the method was first developed in the 1940s as a substitute for overtly coercive "third degree" style interrogations.

OTOH, the accusatory style poses a greater risk of false confessions and thus merits greater skepticism when a confession is the only evidence, particularly in the most serious cases. Indeed, concerns with the Reid technique have troubled courts for years. New York magazine reported in 2010 that "The Supreme Court’s 1966 Miranda decision singled out the Reid method
for creating a potentially coercive environment, citing it as one reason
suspects needed to be informed of their right to remain silent." So it's understandable police might fear those methods would be viewed unfavorably, given that even the Supreme Court has openly expressed fear of its potentially coercive effects.

Even so, with recording interrogations now the law in 19 states, according to the Tribune, there's ample evidence that law enforcement can overcome such skepticism and still achieve convictions. And overall, the benefits of recording far outweigh the detriments. Former US Attorney Geoffrey Stone wrote last week that:

After some hesitation and resistance, law enforcement's reception of
these statewide recording mandates has become extremely positive. They
recognize the many benefits of recording confessions: detectives are
better able to concentrate on the interview rather than on note taking;
there are no longer disputes about what was said and done during the
interrogation; officers who might otherwise be tempted to play
fast-and-loose with the rules are deterred from doing so; it is more
difficult for interviewed suspects to bring trumped-up charges against
police officers for alleged misconduct; and public confidence in the
fairness of the criminal justice system is enhanced. All in all, this
common sense reform has worked extraordinarily well.

Nonetheless, there are still some national, state and local law
enforcement organizations that vehemently oppose statewide laws or court
rules on electronic recording. Although they no longer dispute that
recording is, in theory, a good idea, they nonetheless insist that each
police and sheriff department in the nation should be free to adopt its
own "best practices," which means that every local department could
decide for itself whether or not to record, and if so when and how.
Their reasons for opposing statewide rules are sketchy, at best. For
example, they argue that "every locale is different" and that defense
lawyers will use recordings to "get guilty criminals off." These are
simply unwarranted objections.

Which doesn't mean those objections won't be repeatedly trotted out by law enforcement and the media as Sen. Ellis' bill progresses. Similar objections were raised when the state required recordings at traffic stops after 2001, though none of the Chicken Little predictions were borne out in reality. Given the ubiquity and ease of recording in the 21st century, IMO the practice will inevitably become widespread and in the future will be considered a no-brainer. The question is whether Texas will wait for more tragedies and overturned convictions before acting to formally require it.

Why is it with the various types of recording technologies available today that law enforcement doe NOT use them? I mean..come on! Police should have shoulder mounted cameras on them at all times...but why don't they? The answer is simple...accountability. I believe it is the RARE..VERY RARE cop that wants what he does while on duty recorded.

Now I am sure plenty of people in law enforcement reads these comments...so lets hear an argument against what I have said? hmmmmmm??????

Video cameras in patrol cars record traffic stops and the interactions during traffic stops. This is a common application in LE.

Outside of traffic matters, some people will not talk or interview knowing they are being recorded (be it a witness, suspect, CI, victim or anything in between). Recording is a valuable tool and is a best practice for LE. However it can't always be used.

Also take into consideration that not every officer has every piece of recording equipment with them at all times. Budgets are often tight and equipment fails from time to time. Again, recording is always a "best practice," but LE is not as portrayed in CSI, Criminal Minds, NCIS, Hawaii 5-0, etc as most viewers, jurors, and readers believe.

The two incidents detailed in the '60 Minutes' story occurred two decades ago. I was surprised 60 Minutes only interviewed prosecutors for this story and not any police officials (maybe they tried but were turned down) in order to determine how interview and interrogation practices have been modernized and professionalized in the past twenty years as a direct result of incidents like the ones in the story; most certainly, Chicago PD does not have the same policies and procedures in place. In my experience, false confessions do not occur in such a blatant, pervasive manner in present-day metropolitan police departments (I'm not guaranteeing that it doesn't happen, only that I have not seen or heard about it).

As far as Texas law enforcement is concerned, operating under the microscope of audio/video recordings is second nature and generally embraced; most officers and investigators feel as though the camera or digital audio recorder protects him or her more than it hurts. Conducting an interrogation on audio or video (or both...it never hurts to have a back up) is not only essential to the professional investigator, it is mandatory by law (see Texas CCP 38.22, Section 3) that a statement obtained in an interrogation be electronically recorded in order for it to be admissible as evidence in court. I was surprised Grits failed to mention this in his post, this being a Texas criminal justice blog and all (and his encyclopedic knowledge of Texas law).

Finally, the below paragraph is a misrepresentation of the the "Reid Technique":

"American police tend to employ tactics derived from the Reid technique, which assumes guilt and relies on an accusatory style, cutting off denials and using psychological manipulation to secure confessions. European police, by contrast, tend to rely on an information gathering interview method, with the goal of interrogations more geared toward gathering information which can be confirmed or denied through investigation, as opposed to ending the investigation in the interrogation room."

While it is true American police rely heavily on the teachings of the Reid Technique, it does not assume guilt and does not forgo thorough interviewing practices rooted in corroborative evidence/statements in favor of coercive interrogative accusations (though psychological manipulation is undoubtedly employed when appropriate...of course, not all psychological manipulation is wrong or harmful if used correctly and thoughtfully, a fact to which anyone who has ever raised a child can attest). In fact, the first 8 chapters of the 'The Essentials of the Reid Technique' (available through Amazon) focus on the how to properly conduct a thorough interview in order to help determine who needs to be questioned further and who should be sent home at the first opportunity. As far as cutting off denials is concerned, the Reid Technique teaches that not all denials are created equal: some should be shot down and others should be indulged as a strong indication of innocence. The ability to distinguish between the two is the hallmark of an experienced, skillful investigator.

Bottom line: all interrogations should be recorded. All confessions should be corroborated. This is America, after all, and justice demands it. Anyone who argues otherwise is simply a fool.

I forgot to clarify that the above referenced Texas Law refers to oral statements only. Obviously, written statements should be subjected to the same standards (and are in most major metropolitan police departments).

"Also take into consideration that not every officer has every piece of recording equipment with them at all times. Budgets are often tight and equipment fails from time to time. Again, recording is always a "best practice," but LE is not as portrayed in CSI, Criminal Minds, NCIS, Hawaii 5-0, etc as most viewers, jurors, and readers believe."

First...as far as budget constraints keeping recorders out of the equipment assigned to an officer is kind of a lame excuse. I am sure that is what most cops and police forces love to spout when it comes to accountability. You would THINK that an honest cop would demand to have cameras to stop false accusations...but like I said earlier I think it is a VERY rare thing to find a truly honest cop.

Recording protects both the officer and the suspect. If the recording is complete (no convenient cuts, additions or other manipulations) then use it, and don't be afraid of the truth! Only those officers who violate the rules of interrogation will fear the recordings.

Honorable police officers will never/should never be afraid of a recording.

The bill only requires interrogations to be recorded regarding serious crimes: murder, kidnapping, human trafficking, sexual assault and child abuse.

Grits, thanks for pointing this out. Another prime example of "Cherry-Picking for Justice". Shame on Sen. Rodney Ellis for offering up this fake-ass bill and for his history of cherry picking humans to represent in wrongful convictions.

I'll let you know what his response is as soon as he replies to "Why in the hell would you purposely leave out; the word 'Interviews' and the crime 'Aggravated Robbery' and all Internal Affairs interrogations / interviews regarding investigations of LEOs? Thanks.

To 7:40AM - recording interviews or interrogations is always a best practice and budgetary constraints don't necessary key the recorders out of the hands of officers. However budgetary constraints can keep officers from having either decent equipment or redundant recording devices. Both batteries and equipment fail from time to time. Few, if any, officers are supplied/assigned 2 recorders. Fellow officers occassionally fail to return equipment or a fellow officer may be using the equipment on another case elsewhere. As stated before, recording interviews is ALWAYS a best practice and should be done. Recorded interviews protects both the officers and witnesses/suspects/victims/etc. However not everyone will talk knowing they are being recorded.

I believe that equipment fails..isn't assigned and is left out of the budget, but there is a very, very good reason why. You can say whatever you want, but cops just don't want to be recorded while on duty...except when it is in their favor. There is no push for getting good, reliable recording equipment because they really do not want it. Very good recording equipment IS available and police forces in Texas CAN afford it. Hell..Texas is purchasing surveillance drones and you say they can't afford simple recording equipment? Sorry...but yours is a bad argument.

When the police came to my home they took my 14 year old away from us and behind his vehicle away from the camera to get his "confession" then when my husband insisted on going to jail with him for a taped confession they would not let us take him in our vehicle nor would they let my husband ride in the same vehicle. For 16 miles my child was threatened harrassed and told what to say in his "confession". There was no evidence against him besides this so called confession.

Southern, daily and good for you

Grits for Breakfast looks at the Texas criminal justice system, with a little politics and whatever
else suits the author's fancy thrown in. All opinions are my own. The facts belong to everybody. Who is this guy?

"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Woodlands

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"